Property as a Bundle of Rights

- UPET
- To use
- To possess
- To exclude
- To transfer

Acquisition of Property

Acquisition by Discovery
● Chain of title
● First in time → the notion that being first justifies ownership rights
● Occupancy → the person who is on land has legal rights to the land

Johnson v M’Intosh (1823) → Natives were in rightful possession of land they sold
Whether Indians have the power to give (and private individuals can receive) title to land which can be
sustained in the courts of the US?
Rule → Discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase or
by conquest and gave also a right to such a degree of sovereignty, as the circumstances of the people would
allow them to exercise
● Absolute title to lands cannot exist at the same time in different people or gov’t’s
● Didn’t completely obliterate their rights → Natives were admitted to be rightful occupants of the soil
but their rights to complete sovereignty, as independent nations, were diminished
● Conquest→ taking of possession of enemy territory through force, followed by formal annexation of the
defeated country by the conqueror

Pierson v Post (1805) → Post, with hound dogs hunting and in pursuit of fox. Knowing this, Pricky Pierson
prevented Post from catching the fox and killed it and carried it away
What acts amount to occupancy, applied to acquiring right to wild animals?
Rule → hot pursuit does not amount to occupancy to acquiring right to wild animals
● Occupancy can be established by a pursuer ¬in actual possession by:
1. Mortal wound
2. Subject to control of their pursuer
Reasoning → certainty is important. Courts want to preserve peace and order
If custom had applied → Post would likely have won because hunters in the region regarded hot pursuit as giving
rights to take an unimpeded first possession

Justinian & Bracton Puffendorf & Bynkershoek Barbeyrac

...this view held that pursuit alone ….they believed actual corporal ...he believed that actual bodily
vests no property rights and possession was required seizure in all cases was not
wounding the animal is not necessary and mortal wounding by
enough one not abandoning his pursuit
may be sufficient
Bouchouar 1
Locke’s Labour Theory
● The law of accession → when one person adds to the property of another by labour alone
● Whatsoever he removes out of the state of nature, he mixes his labour with it and joins to something
that is his, makes it his property
● Room to exclude the common right of other men
● Locke claims that indian occupancy did not involve adequate amount of ‘labour’ to perfect a ‘property’
interest in the soil

Acquisition by Capture
Extending the rule of capture
Rule of Capture
● Courts applied this rule to oil and natural gas because they collect in reservoirs under the land owned by
many people and were considered fugitive resources
Role of Custom
Ghen v Rich (1881) → finback whale with bomblances case
Whether the creation of a property right should be determined by the custom of the industry?
Precedent establishing custom: Bartlett v Budd, Swift v Gifford, Taber v Jenny
Custom of ownership → in this case, the only real way to capture the whale was by the custom set in place which
was to let the whale sink and 3 days later wait for it to float to surface and then whoever found it would contact the
person who may have killed it
Rule → the first taker engaged in the only act of appropriation that is possible in the nature of the case. If a
party does all that is possible to do to make the animal his own, that would seem sufficient

Popov v Hayashi (2002) → barry bonds ball. Equitable

Gray’s Rule
division was the solution but that was BS → A ball is caught if the person has achieved
Whether Popov achieved possession or right to complete control of the ball at the point in time that
possession as he attempted to catch and hold on to the momentum of the ball and the momentum of
the ball? Whether he did enough to reduce the ball to the fan while attempting to catch the ball ceases.
his exclusive dominion and control; were his acts → A baseball which is dislodge by incidental contact
sufficient to create a legally cognizable interest in the with an inanimate object or another person is
ball? contact that is ¬intended by the other person, is
NOT possessed
Rule → where actor undertakes significant but → the first person to pick up a loose ball and secure
it becomes its possessor
incomplete steps to achieve possession of a piece of
abandoned personal property and the effort is
interrupted by the unlawful acts of others, the actor Conversion Is the wrongful dominion over the
personal property of another
has a legally cognizable pre Elements
possessory interest in the property. Intentional
→ that pre possessory interest constitutes a Actual interference over the property
of another
qualified right to possession which can Even if the property
support a cause of action for conversion was obtained lawfully

Must be intentional but wrongful

purpose is ¬component of conversion
Bouchouar 2
The Right to Exclude, Alienate, Abandon or Destroy

Right to Exclude
Trespass
● Involves the property right to exclude
Jacques v Steenberg Homes (1997) → ∆ with mobile home. Homeowners said nah you can’t use our land to get
across, just go around and ∆’s said fuck that round em up boys. π sued for intentional trespass
Whether, when nominal damages are awarded for an intentional trespass, a punitive damages award may
be sustained
Rule → the private landowners right to exclude others from his or her land is essential to property rights.
You should have the exclusive enjoyment of your own property
→ people should feel confident in legal system to punish trespassers to avoid resorting to self help

Limits on Right to Exclude

State v Shack (1971 - NJ) → landowner Tedesco filed a complaint against Shack and Tejeres (lawyer & field
worker) and they were prosecuted for trespass after refusing to leave land when he was there to give legal
advice and medical treatment
Whether NJ property law includes the right to bar access to gov’t services for a vulnerable population.
Rule → NJ property law does not entitle a property owner to bar gov’t services to vulnerable populations;
necessity, private or public, may justify entry upon the land of another
→ ∆’s conduct did not invade possessory rights of farm-employer, therefore it’s beyond the reach of the
trespass statute
→ property rights are not absolute; they are relative and accommodations must be made when necessary
→ title to real property cannot include the dominion over the destiny of persons the owner permits to
come upon the premises

Abandonment
Elements of Abandonment (CL)

1. Intent to abandon (intent to relinquish all right, title and interest, but not to transfer to any particular
person)
a. May be express or inferred from acts
2. Takes action that manifests this intent- Voluntary act by owner effectuating that intent

~can’t abandon real property~

bonus point: Sharpe v Turley ruled that trash in a dump is ¬abandonment; it’s a transfer to waste hauling
Hawkins v Mahoney (1999) →prison inmate escapes and comes back
Whether an escape from prison constitutes an abandonment of property that destroys any property interest
in the property
Rule → the presumption or inference of intent to abandon one’s
Rebuttable property, is a rebuttable presumption
presumption: an
assumption one takes to
be true unless someone
comes forward to
contest it and prove Bouchouar 3
otherwise
 → so when Hawkins’ returned and asked for his shit back before anyone else claimed it, he rebutted the
presumption that he ever intended to abandon his property
→ it matters that it was simply in storage and had not yet been appropriated
→ abandoned property does not become the property of another unless and until another person possesses it
with intent to acquire title
Pocono Springs v Mackenzie (1995 PA) → family that tried to get rid of vacant lot for YEARS it was like the family
whatever that thing is called when no one wants it.
Whether it is possible to abandon ‘perfect’ title to real property under PA law
Rule → Perfect title in property cannot be abandoned

Right to Destroy
● You don’t have complete right to destroy -- court will take public policy into consideration.
● When your rights invades another’s rights, courts will draw a line

Eyerman v Mercantile Trust Co. (1975) → will of dead lady to tear down the home, sell the land, and give proceeds
to heirs/devisees
Whether a landowner’s attempt to compel his successor to do something against public policy is deemed void
Holding → no benefits are present to balance against the injury to the community and to allow the condition in the
will would be in violation of public policy
Rule → when a landowner attempts to compel his successor in interest to do to the land
something against public policy, a court may deem the condition void.

Acquisition by Find
● A finder is entitled to possession of lost property against everyone except the true owner
○ Even when someone has, by tort, acquired possession of property, they have a right to that
property against a 3rd party/ wrongdoer
■ We want to prevent an endless series of unlawful seizures
● The occupier of a house will almost invariably possess any lost article on the premises

Armory v Delamirie (1722 King’s Bench) → π is a chimney boy suing for the jewel he found that ∆ kept
Rule → A finder of property prevails against all but the true owner. A prior possessor prevails over a
subsequent possessor

Bailor Bailee
- Owner of goods - Rightful possessor of goods by a person who
- In cases of lost objects, courts bar an action is not the owner
by a true owner against the present
possessor if she has already paid the finder

Me Drycleaner

Hannah v Peel (1945 King’s Bench) → brooch found in unoccupied house

Whether an honest finder of an object from a house never occupied by the homeowner has better claim to the
object than the homeowner
Rule → a person possesses everything which is attached to or under his land, not necessarily to
things “on top”
Bouchouar 4
 ● It’s also helpful here to distinguish between title (ownership) and possession
(occupancy)
○ Occupier of house will almost invariably possess any lost article on the premise
○ So in this case, although Peel had title (ownership), he wasn’t in possession of the house since
possession requires occupancy

Bridges v Hawkesworth South Stafforshire v Sherman Elwes v Briggs Gas

...don’t matter where the shit was ...this case held that the possessor ...don’t matter if they know it’s on
found, the finder is entitled of the land is generally entitled the land, the landowner owns
against everyone except the true against the finder, to chattels everythinggggg found
owner found on land

Mislaid Lost Abandoned

Finder = ¬rights Finder = entitled against everyone Finder = entitled to keep

except true owner
- voluntarily puts object in a
particular place, intending Finder is entitled against true Finder entitled even against OG
to retain ownership but owner except if attached to, owner but exceptions to lost
forgets about that shit embedded in land, or in a house property are likely to apply
or private portion of property
McAvoy v Medina → owner of owned and inhabited by another
shop has rights to mislaid property
- unintentionally and
against finder. When a person finds
involuntarily parts with
an item that has been voluntarily object through neglect or
placed and then neglected to be inadvertence and does not
removed, the person acquired no know where it is
property rights and thus had no
rights to demand it from the owner Bridges Rule

Bouchouar 5
Adverse Possession

Adverse Possession Elements → burden of proof on possessor

1. An entry that is actual

2. Exclusive occupancy
3. Open and notorious
4. Continuous for the statutory period
5. Adverse
6. under a claim of right
~exceptions: gov’t, and disabilities

● Colour of title
● Constructive possession doctrine
● Adverse possession functions as a method of transferring interests in land without the consent of the
prior owner and even in spite of the dissent of such owners
○ Rests on social judgements that there should be a restricted duration for assertion of “aging
claims”
● Acquisition of title to real and personal property by adverse possession is based on the expiration of a
statute of limitations
○ Statute of Limitation play a big role in determining ownership of real property
■ It sets limit on time where owner of land can bring action or engage in self help for the
recovery of land from another person in possession
● Think of Locke’s Labour theory

Van Valkenburgh v Lutz (1952 NY) → case with all those important dates and little garden in other lot and new
neighbors move in
Whether sufficient cultivation requires occupation of entire plot and whether acting as true owner is
sufficient to establish claim of title
Prescriptive Rights → gives rise to rights of use such as rights of way and other easements but
title to land remains in X
Rule → to acquire title to real property by adverse possession not founded upon a written
instrument, it must be shown by clear and convincing proof that for at least 15 years there was
an actual occupation under a claim of title
→ proof in this case fails to show that cultivation incident to the garden utilized the whole premise
→ in this case, they could have shown proof through either:
1. Cultivation (didn’t work)
2. Or a fence

Claim of Title
Good Faith Bad Faith Objective
I thought I owned it but I didn’t I knew I didn’t own it but I Actions are dispositive, state of
intended to make it mine anyway mind irrelevant

Bouchouar 6
 -sometimes forced to pay market
value

Test applied in NJ b4 Manillo ~majority test~

Colour of Title vs Claim of Title

● THESE ARE DIFFERENT -- DO NOT CONFUSE
● Claim of Title → one way of expressing the requirement of hostility or claim of right on the part of an
adverse possessor
● Colour of Title → refers to a claim founded on a written instrument or a judgment or decree that is for
some reason defective and invalid (grantor does ¬own the land conveyed)
○ Grantor does not own the land conveyed
○ Deed is improperly executed
○ Colour of title gives the adverse possessor reason to think they have actual title so it’s often
treated differently
○ Only in a few states is colour of title required to acquire title by adverse possession
○ In some states a shorter statute of limitations is applicable to adverse possessors with colour of
title than to those without it
○ Important difference → Entry under colour of title is an advantage in all states under the doctrine of
constructive adverse possession

Open and Notorious

● This element is so important because if possession of land is clear and unequivocal
(immediately visible) then the owner may be presumed to have knowledge of the adverse
occupancy
Mannillo v Gorski (1969 NJ) → stupid fucking steps case. π filed injunction against “trespass” encroachment of
steps and ∆ counter sued saying she gained title from adverse possession
Bad faith claim of title required?
Holding → Nah, let’s get rid of the intentional hostility requirement.
Whether when encroachment of an adjoining owner is of a small area and the fact of the intrusion is not clear to the naked eye
→ presumption of knowledge is warranted
Rule→ no presumption of knowledge arises from a minor encroachment along a common boundary
→ a minor encroachment upon the land of another is not considered to satisfy the open and
notorious requirement of adverse possession
Options? → Equity in Action
● If an innocent trespasser of a small portion of land adjoining a boundary line cannot without great
expense remove or eliminate the encroachment, or such removal is impractical or would cause great
hardship, the true owner may be forced to convey the land so occupied upon payment of fair value
thereof without regard to whether the true owner had notice

Main Doctrine Connecticut Doctrine

-intention of occupant to claim the ownership of land -doesn’t matter if it’s a mistake
¬embraced in his title is a necessary element of -whether or not the entry is caused by mistake or
adverse possession intent, the same result eventuates → true owner is
-in the case of occupancy by mistake, it must be the
ousted from possession and in either event his neglect to
case that whether it shall be found to be the correct

Bouchouar 7
 one or not, there’s still an intention to claim title seek recovery of possession within the requisite time is
● Absolute intention in all probability the result of a lack of knowledge that
he is being deprived of possession of lands to which he
has title

What Constitutes Continuous?

Howard v Kunto (1970) → shit show. Basically musical chairs but with land lots
Is a claim of adverse possession defeated because the physical use of the premises is restricted to summer
occupancy
Rule → to constitute adverse possession there must be actual possession which is uninterrupted, open & notorious,
hostile & exclusive, & under a claim of right made in good faith for the statutory period
→ summer occupancy only of a summer beach home does not destroy the continuity of possession required
by the statute
→ a purchaser may tack the adverse use of its predecessor in interest to that of its own where the land was
intended to be included in the deed between them, but was mistakenly omitted from the description

Tacking To fulfill privity requirement:

-process where an individual who is in - Voluntary transfer of estate from
adverse possession of real property adds his previous AP or
or her period of possession to that of a prior - Voluntary transfer of possession
adverse possessor from previous AP accompanied by
-tacking of adverse possession is an erroneous deed
permitted if the successive occupants
are in “privity” (voluntary transfer)
~OK bc we’re still punishing OG owner~
Disabilities & adverse possession
● Most statutes give an additional period of time to bring an action if the owner is under a disability
● Disability provisions are limited in 2 ways
1. Only disabilities specified in the statute can be considered
2. Usually only disabilities of the owner at the time adverse possession begins count
Adverse Possession against Gov’t
● Majority → can’t file an adverse possession suit
● Minority → you can
○ For housing and gardens
■ Urban plight and property value
● In NJ unused public property is to be treated as private property

Adverse Possessions of Chattels

O’Keeffe v Snyder (1980 NJ) → π brings an action in replevin for a painting against ∆. It’s a whole mess her shit
went missing mad long ago and she never did anything about it until ~30 years laters
● Open and visible possession of personal property may not be sufficient to put the original owner on
actual or constructive notice of the identity of the possessor
○ Unlike with real property (real property will remain in the spot u left it)

Bouchouar 8
 Discovery Rule
- Applies to an action for replevin of a painting
- In appropriate cases, cause of action will not begin to accrue until the injured party discovers or by
exercise of reasonable diligence and intelligence should have discovered facts which form the
basis of a cause of action
- Burden of proof shifts to owner to establish the following
1. Whether due diligence was used
2. Whether was an effective method to alert the art world to the loss
3. Would registration have put reasonably prudent purchaser on notice

Acquisition by Creation

Int’l News Service v Associated Press (1918 SCOTUS) → INS cheated in their news collection
Rule→ news is quasi property, irrespective of the rights either as against the public (unfair competition)

Feist Publications, Inc v Rural Telephone(og π) (1991 SCOTUS) → ∆ took π’s numbers after they said no and
now courts gotta clarify the extent of the Copyright Protection available to phone directory white pages
Sweat of the Brow Doctrine →(rejected) new theory to justify the protection of factual
complications. The underlying notion was that copyright was a reward for the hard work that went into
compiling facts
Copyrights Act → primary objective of copyright is not to reward the labour of authors but to promote
the progress of science and useful arts

Hot News Doctrine

News gatherer may recover if:
1. The news gathering or collection process involves significant expenditures
2. The collected news or info is time sensitive
3. The ∆ free rides on the collected material
4. The free riding directly competes with the news gatherer’s market
5. The freeriding is likely to diminish incentives to collect news/info in a timely fashion

Bouchouar 9
Possessory Estates

Fee Simple and Life Estates

Fee Simple Absolute (characteristics)

● During his life, O can transfer (convey) to another
● Upon his death, the FSA will pass under his will or to his heirs
● Creditors can reach the FSA and sell to pay his debt
● Fee simple absolute is the largest estate in terms of duration
Creation of FSA
Back in the day...
● To A → words of purchase
● & his heirs → words of limitation indicating A takes a fee simple
Today….
● “to A”

Life Estate
● Estate that lasts for duration of grantee’s life
● Significance is that grantor can control who takes the property after the life tenant’s death
● If A sells life estate to B then B’s life estate will run for the duration of A’s life (pur autre vie)
○ If B dies before A, then B’s heirs will get it until A dies
● Every life estate is followed by a future interest
● Can’t sell without agreement of all holders of future interests or court order
○ The person creating the legal life estate can draft it so as to give the life tenant a power to sell
or mortgage a fee simple or to lease beyond the duration of the life estate
Creation of a life estate
Back in the day…
● “To Soundous”
Today…
● “To Soundous for life”
~CL used to favour Life Estates, now courts favour fee simple~

White v Brown (1977) → Handwritten will where language was unclear as to whether the will left π a life estate or
a fee simple absolute.
Rule → unless words and context of Lide’s will clearly evidence her intention to convey only a life estate to π, the
will should be construed as passing the home to π in fee
→ a construction which results in partial intestacy will not be adopted unless such intention clearly appears

Bouchouar 10
 → Lide’s restraint on alienation of the home devised to π does not evidence a clear intent to pass only a life
estate as is sufficient to overcome the law’s strong presumption that a fee simple was conveyed. Therefore,
the restraint on alienation is void
Test used
1. Unless terms express a life estate, its a fee simple
2. If there is a contrary intention

Baker v Weedon (1972) → He willed everything to sugarbaby (if she dies, her kids, if she has no kids then my
grandkids, no daughters get it). So here, a life estate was vested in sugarbaby and a contingent remainder was
vested in the grandchildren.
Whether the circumstance of this case constitute “necessity” allowing the court to order sale of the entire
property
Rules → courts of equity have the power to order sale of land in which there are future interests where this is
necessary for the preservation of all interests in the land
When is it necessary?
1. To prevent waste
2. To preserve the estate from complete or partial destruction
a. Ex. to pay taxes and maintain property
Alternatives for Sugardaddy?
● He could’ve created a trust for the life tenant under which the trustee holds the legal title in fee simple
and manages the life tenant. On her death, the remaindermen would be entitled to the assets owned by
the trust, in whatever form those assets then took
Types of Waste
Affirmative Waste Permissive Waste Ameliorative Waste
Arising from voluntary acts that Arising from a failure to act- so Resulting from changes to the
significantly reduces the value of like the failure of the possessor to property, specifically changes
the property exercise reasonable care to that increase the value
protect the estate

Most of these cases arise from a

life tenant who fails to repair a
dwelling that results in a
substantial loss (like a leaky roof)

Bouchouar 11
Defeasible Estates
● Primary function is land use control
● A fee simple may be absolute or it may defeasible
● Defeasible means it can be terminated or forfeited
● Difference between life estate and defeasible estate?
○ A life estate ends naturally at death whereas a defeasible life estate may end earlier than that
○ When you have a life estate, you can’t use it for credit, can’t make significant changes, or
renovations to the house
● An estate is defeasible when it is subject to forfeiture upon the occurrence of some event
2 basic distinctions used in categorizing a defeasible fee:
1. Who holds the FUTURE interest?
2. Is the defeasance language expressed in words of TIME or words of CONDITIONS

Fee Simple Determinable (FSD) Fee Simple Subject to Condition Fee Simple Subject to Executory
aka fee simple on a special limitation Subsequent ( FSSCS) Limitation (FSSEL)

-so limited that it will end -not automatically terminated, but -created when a grantor transfers a
automatically when a stated event may be cut short when a stated FSSCS and in same instrument
happens condition happens creates a future interest in a 3rd party
-always accompanied by a future -unless and until entry is made, the rather than herself
interest fee simple continues
-Future interest is retained by the -future interest is retained by the -future interest is retained by 3rd
transferor (or his successors) transferor (or his successors) party

Possibility of reverter Right of Entry Executory Interest (always

-may be expressly created, but not - unless and until entry is made, the automatic)
necessary fee simple continues

Created by language that implies identified by conditional language language can be durational or
that the transferor is conveying a fee conditional
simple only until an event happens
WORDS OF TIME WORDS OF CONDITION

- “so long as…” - “but if…”

- “while used for…” - “provided, however, that when…”
- “during the continuance of…” -”on condition that if the premises…”
- “in order to create…” - “for blank blank purposes”
- “until the land is no longer used - “while the premises are used for…”
as…” - “on the condition that if the
premises are not used for…”
*any words with a durational aspect

*words indicating that the estate may

be cut short at the transferor’s
election

Bouchouar 12
 ○ Today, in most states, the possibility of reverter and the right of entry are transferable inter
vivos and devisable.
○ A few states follow the CL rule → “interests are not transferable inter vivos or devisable except to
the owner of the possessory fee”
○ A few other states say → possibility of reverter is transferable but right or entry is not
Extra point? → 3rd Rst. abolishes distinction between three and replaces them with a single estate the fee simple
defeasible
Mahrenholz v County Board of School Trustees (IL - 1981) → land to be used for school purposes only
Whether trial court correctly concluded that the π’s could not have acquired any interest in the school
property from the Jacqmains and H. Hutton
Rule-ish → future interest in grantor of estate can only be a possibility of reverter or a right of re-entry for
condition broken.
→ neither may be transferred by will or inter vivos conveyance
→ upon a grant of exclusive use followed by an express provision for reverter when that
use ceases, courts and commentators have agreed that a FSD vs a FSSCS is created

Restraints on Alienation
4 objections to restraints on Alienation
1. Makes property unmarketable
2. Restraints tend to perpetuate the concentration of wealth by making it impossible for the owner to sell
property and consume the proceeds and consume the proceeds of sale
3. Restraints discourage improvements on land
4. Restraints prevent the owner’s creditors from reaching the property → this creates hardship on creditors who
rely on the owner’s enjoyment of the property in extending credit

Disabling Restraint Forfeiture Restraint Promissory Restraint

Withholds from the grantee the Provides that if the grantee Provides that the grantee promises
power of transferring his interest attempts to transfer his interest, it not to transfer his interest
is forfeited to another person Enforceable by K remedies of
damages or an injunction
“To A and his heirs but any
transfer hereafter in any manner “To A and his heirs, but if A “To A and his heirs and A
of an interest in Blackacre shall attempts to transfer the property promises for himself, his heirs
be null and void” by any means whatsoever then to and successors in interest that
B and her heirs” Blackacre will not be transferred
~void for life estates~ ~valid for life estates~ by any means”
The Restatement
● Following overwhelming majority, Rst. provides that an absolute restraint on a fee simple is void
● Partial restraints is valid if under all circumstances of the case, the restraint is found to be reasonable in
purpose, effect, and duration

2 Tests for Determining Restraints on Alienation

Formalist (CL) Alternative/Functional (modern rule)
- An explicit restriction on use is not a restraint - A use restriction may constitute an indirect
on alienation even if it has such an effect restraint on alienation and be rendered void if
it has a material adverse effect on
marketability
- The test is whether it limits alienation to an
Bouchouar 13
 impermissibly small number of persons
Mt. Brow Lodge, Odd Fellows v Toscano (1967) → π wants to quiet title to parcel of real property acquired in ‘50
from Toscano’s. ∆ is trustees and administrators of estate
Rule → When real property is conveyed between parties, any limitation on the grantee’s rights to alienate the
property is void as a matter of public policy but limitations on the acceptable uses of the property by the
grantee are enforceable.
→ in doubtful cases, the preferred construction is in favor of an estate subject to a condition subsequent
Future Interests
● A future interest is not a mere expectancy, it actually gives legal rights to its owner
● So a future interest is a nonpossessory interest that will or MAY become a possessory estate in the
future (it’s still a presently existing property right)

Future Interests recognized in legal How to classify?

system

Interests retained by the Transferor: 1 → identity the person who holds it

1. Reversion Is the holder a transferor or a transferee?
2. Possibility of reverter
3. Right of entry
Interests created in a transferee
1. Vested remainder
2. Contingent remainder
3. Executory interest

Future Interests in Transferors

1. Reversion 2. Possibility of Reverter 3. Right of Entry

-when an owner conveys an absolute -A future interest in a transferor -Future interest in a transferor
estate deemed “smaller” than the created by a FSD created by a FSSCS
estate he holds, he retains a reversion -Becomes possessory automatically -Becomes possessory if the transferor
-Reversion is transferable during life upon the happening of the stated exercises her right to re-enter or
and descendible and devisable at event retake upon the happening of the
death stated condition
-When a reversion is retained, it may -When an owner transfers an estate
or may not be certain to become subject to condition subsequent and
possessory in the future retains the power to cut short or
terminate the estate, transferor has a
- O conveys Blackacre” to A for - To A and her heirs so long as right of entry
life.” O has a reversion in fee the land is not used for
simple that is certain to commercial purposes
become possessory. - To A and her heirs but if the
- O conveys Whiteacre “to A land is used for commercial
for life, then to B and her purposes, O has a right of
heirs if B survives A.” O has a entry
reversion in fee simple that is
not certain to become
possessory. If B dies before A,
O will be entitled to
possession at A’s death. If A

Bouchouar 14
 dies before B, O’s reversion is
divested on A’s death and will
never become possessory.
It does not matter that O’s
reversion is contingent on
future events, it is still
considered a reversion

Future Interests in Transferees

1. A remainder of executory interest cannot be retained by the transferor; these interests are created
only in transferees
2. Once created, a remainder or executory interest can be transferred back to the grantor, but the name
originally given the interest does not change
1. Vested Remainder 2. Contingent Remainder 3. Executory Interests

A remainder is vested if: A remainder is contingent if: An executory interest is a future

1. It is given to an ascertained 1. It is given to an unascertained interest in a transferee that can take
person and person or effect only by cutting short another
2. It is not subject to a condition 2. It is made contingent upon
interest
precedent other than the some event occurring other
natural termination of the than the natural termination
preceding estates of the preceding estates/ Shifting Springing
subject to a condition Executory Executory
To A for life, then to B and his heis precedent Interest Interest
It is not ready to become a
A remainder is vested if it is created in possessory estate whenever the prior Divests or cuts Divest the
an ascertained person and is ready to estate terminates...not ready UNTIL short some transferor in the
become possessory whenever and the event occurs interest another future following a
transferee gap in time during
however all preceding estates expire which no other
To A for life, then to B and his heirs if transferee has the
- A remainder may be B gets married right to possession
indefeasibly vested, meaning
that the remainder is certain To A for life, then to B if B receives a To C and her
of becoming possessory in the certificate in arugula farming. To B and his heirs, if C returns
future and cannot be divested B does not have said certificate. heirs, but if C from France
- A has life estate returns from -In order to
~majority view is to construct an - B has contingent remainder France, to C and become
her heirs. possessory, C’s
ambiguous remainder as vested, - Once B receives his
-C holds a shifting interest must cut
rather than contingent~ certificate, B has a vested executory interest short the estate
remainder because it would held by O, the
Unascertained person just means cut short the fee transferor.
someone who isn’t born yet or cannot simple held by B, -C has a springing
be determined until the happening of another transferee executory interest
Condition Subsequent → language an event
makes a completed gift then adds on a The Rule Against Perpetuities ~ difference between the two hinges
later condition in another clause on the identity of the person whose
- To A for life, and then to B estate or interest is divested~
Condition Precedent → is an event
and his heirs, but if B does
not reach age 21, then to C that must occur BEFORE the
Modern Executory Interests
and his heirs remainder can become possessory
- Here, B has a vested - To A for life then, if B reaches ● FSSEL → upon the happening
remainder subject to age 21, to B and his heirs of a stated event, is
divestment - Here, B has a automatically divested by an
contingent remainder
executory interest in a
transferee

Bouchouar 15
 ● Executory interest treated as
contingent interests, bc they
are subject to a condition
precedent and do not vest
until they become possessory

Indefeasibly vested Vested remainder subject to Vested remainder subject to

remainder partial divestment open

-a vested remainder that is subject -is a vested remainder in one or

-identity of the holder is certain to a condition subsequent more ascertainable members of a
and the remainder is certain to -identity of the interest holder is class that may be enlarged by the
become a possessory estate certain and the remainder is addition of presently
certain to become a possessory unascertainable persons
estate UNLESS some specified
event occurs -the identity of the interest holder
is certain and the remainder is
certain to become a possessory
estate but the size of the holder’s
share in the estate is uncertain

Remainder
● A remainder is a future interest that waits politely until the termination of the preceding possessory
estate, at which time the remainder moves into possession if it is then vested
● A remainder is a future interest that is capable of becoming possessory at the termination of the prior
estate
● A remainder can only follow a life estate, a fee tail or a term of years
● If, at the time the future interest is created, it is not possible for it to become possessory
upon the termination of the prior estate, the future interest is not a remainder
Alternative Contingent Remainders
● To A for life, then to B if B survives A, if not, to B’s children/ B has a child C
○ A has a life estate, B has contingent remainder, C has an alternative contingent remainder
○ If B dies before A, then C has a vested remainder subject to open
○ This disappears if previous interest vests of becomes possesory
○ So u can’t have an alt. Contingent remainder after a vested remainder
4 advantages of vested remainders
1. Acceleration in possession
a. A vested remainder accelerates into possession whenever and however the preceding estate ends
i. A contingent remainder cannot become possessory so long as it remains contingent
b. Ex: “to A for life, then to B, but if B dies under 21 to C”
i. B holing a vested remainder is entitled to possession at A’s death even though B is under
21
ii. If B is under 21, B’s possessory estate remains subject to divestment until B reaches 21
iii. If the conveyance read “to A for life, then to B if B reaches 21”
1. B would not be entitled to possession at A’s death prior to B’s reaching 21
2. Assignability

Bouchouar 16
 a. Most courts regard contingent remainders as transferable during life and reachable by creditors
however some courts still follow CL and say it’s not assignable during the remainder
beneficiary’s life and hence unreachable by creditors
b. Vested remainders have always been transferrable during life as well as death
3. Destructibility of contingent remainders
4. The rule against perpetuities
a. Contingent remainders are subject to the Rule Against perpetuities, whereas vested remainders
are not
Co-Ownership and Marital Interests

Tenancy in Common Joint Tenancy Tenancy by the Entirety

- separate but undivided - survivorship rights - spouses “per tout et non per
interests in the property - if these 4 don’t exist, it’s a my” → by the whole and not
- ¬ survivorship rights tenancy in common:
by the half
1. Time
2. Title - must have 4 unities
3. Interest +marriage
4. Possession - u can’t sell ur interest
-”per my et per tout” → by the share
or moiety and by the whole
-when one dies, their interest
disappears and morph’s into the
other persons

Language:
~current default~ -to A & B as joint tenants
*unilateral right to transfer *unilateral right to transfer

Concurrent Interests
● Joint tenancy → you have the right to defeat the right of survivorship of the other by transferring to a 3rd
party but u don’t have this right in tenancy by the entirety because you’re considered “one person” through
the marriage
○ Use of strawman
● To sever a joint tenancy → judicial partition
● If u want indestructible right of survivorship, you can get this by creating a joint life estate with a
contingent remainder fee in the survivorship
Severance of Joint Tenancies
● If an indestructible right of survivorship is desired that may be accomplished by:
1. creating a joint life estate with a contingent remainder in fee to the survivor,
2. a tenancy in common in fee simple with an executory interest in the survivor or
3. a fee simple to take effect in possession in the future
● The modern trend is away from requiring adherence to the old four unities for purposes of creating JT
and in favour of an intent test; same is true for purposes of severing JT
● If A murders B, code provides that the murder severs the JT and converts it into a tenancy in common.
The killer loses his right of survivorship in the decedent’s share
● A judgment lien secured against one JT did not serve to extinguish the joint tenancy
Bouchouar 17
 ● A number of states have enacted statutes in recent years providing that a divorce converts a JT between
the former spouses into a tenancy in common
● For any kind of less-than-fee-simple conveyance (mortgage, life estate, lease, etc) there are 4 possible
outcomes: A & B hold porperty as JT and A converys a life estate in the property to X
1. The conveyance of the interest severs the JT
2. The conveyance does not sever the JT
3. The conveyance does not sever the JT and if B survives A, B takes subject to the interest
(becoming a tenant in common with X for the period of the interest); if B predeceases A,
A is subject to the interest
4. The conveyance results in a partial or temporary severance; if A dies bfore B, proceed as
in the first alternative above; if A survives B, proceed as in the second or third
alternative; if X dies first, there is no severance and A and B remain joint tenants

Riddle v Harmon (1980 CA) → Ms & Mr Riddle took title as joint tenants. She didn’t want her property to pass to
her husband so she terminated the joint tenancy by granting to herself the land, which disposed of the joint tenancy.
Whether a joint tenant can be severed unilaterally without the use of an intermediary (yes)
Rule-ish → it was no longer required in CA to have a strawman to CREATE a JT so now the Q is, is a strawman
required to TERMINATE a JT
Rule → A universal right of each joint tenant is the power to effect a severance and destroy the right of survivorship
by conveyance of his or her JT interest to another person

Harms v Sprague (1984) → Harms and his bro had taken title to property as a JT with full right of survivorship.
Defendant’s are: the executor of dead bro’s will and the mortgagees of the property.
Rule → a mortgage given by one joint tenant of his interest in the property does not sever the joint tenancy
therefore the π’s right of survivorship became operative upon the death of his bro and lien disappeared with the bro’s
death
→ liens on property as a result of court judgments are not sufficient to destroy 4 unities.

Relations Among Concurrent Owners

● Goals include : avoid inefficiency, fairness
● Partition → the privilege of each co-owner to transform a concurrent estate into estates held in severalty
○ Available to any JT or tenant in common NOT to tenants by entirety
○ Black farmers and heir property → think about the issues they face with partition since many black
farmers died intestate (not trusting the system) and resulted in many cotenants

Partition in Kind Partition in Sale

- courts favour this more bc a sale of one’s property -should be ordered only when:
without his consent is an extreme exercise of power 1. Practical: The physical attributes of the land
warranted only in clear cases are such that a partition in kind is
impracticable or inequitable and
2. Best interest of all parities: The interests
of the owners would better be promoted by a
partition by sale
a. Analysis: The consequences of a
Delfino v Vealencis → physical partition of property is partition in kind must be compared
with those of a partition by sale

Bouchouar 18
 practicable
● Common Rule from Johnson v Henrickson → a sale is justified if the value of the land when divided into
parcels is substantially less than its value when owned by one person
○ Courts will order sale if sale of the whole will bring a higher price than physical division and sale
of the parts
● If a court finds that partition in kind is impractical or wasteful, and that sale would not protect the
interests of all parties, then the court may assign all of the property to one or more of the cotenants,
provided they pay the other co tenants compensation in an amount set by the court

Sharing the benefits & burdens of Co-ownership

Swartzbaugh v Sampson (1936) → walnut trees and boxing rink
Can one joint tenant who has not joined in the leases executed by her cotenant and another maintain an
action to cancel the leases where the lessee is in exclusive possession of the leased property?
Rule → the act of one joint tenant without express or implied authority from or the consent of his cotenant cannot
bind or prejudicially affect the rights of the latter
→ a lease by one joint tenant does not sever the joint tenancy
→ joint tenants both have a right to possession, neither has a right of exclusive possession
Alternative options for wife → raise rent or occupy that land as well; she bring action for a partition

Bouchouar 19
Leaseholds: The Law of Landlord and Tenant

Term of Years Periodic Tenancy default Tenancy at Will

Estate that lasts for a period of A period of some fixed duration A tenancy that lasts so long as
time or a period commutable by a that continues for succeeding both landlord and tenant desire
formula periods until either landlord or ● No fixed period
● At CL there was no limit tenant gives notice
● Some state statutes limit # ● No notice = automatic
of years extension
● Must be for fixed period ● At CL 6 months notice
● Can be terminated upon required for year lease
some event or condition ○ Modern day = 30
● Death of landlord or days
tenant has no effect on ● Notice is reciprocal
duration

Garner v Gerrish (1984) → landlord died and his executor tried to get rid of Gerrish
● Lease: “Gerrish has the privilege of termination this agreement at a date of his own choice”
Whether a lease which grants the tenant the right to terminate the agreement at a date of his choice creates a
determinable life tenancy on behalf of the tenant or merely establishes a tenancy at will
Holding → the lease expressly and unambiguously grant to the tenant the right to terminate and does not reserve to
the landlord a similar right
→ “L leases a farm to T for as long as T desires to stay on the land” this lease creates a determinable life estate
in T terminable at T’s will or on his death
Lease = conveyance + K

The Tenancy at Sufferance: Holdovers

● Tenancy at sufferance arises when a tenant remains in possession after termination of the tenancy
○ CL gives landlord confronted with a holdover 2 options
1. Eviction + damages
2. Consent (express or implied)
● Most jurisdictions → a holdover = periodic tenancy
○ Some courts base it on original term of lease
● The tenancy resulting from holding over is usually subject to the same terms and conditions as those in
the original lease unless the parties agree otherwise or unless some term or condition is regarded as
inconsistent with the new situation

Fair Housing Act

● How to establish discrimination?
○ Must prove either disparate treatment of discriminatory impact
○ Disparate treatment refers to intentional discrimination

Bouchouar 20
 ○ Disparate impact refers to practices that have the effect of harming an identifiable group more
than other groups

Duties, Rights and Remedies (Especially Regarding the Condition of Leased Premises)
Landlord Duties: Tenant’s Rights and Remedies
● Disputes between landlord and tenant regarding the condition of the premises arises in essentially 2
ways:
1. The tenant might wish to vacate or to stay but less (or no) rent
2. The tenant (or an invitee of the tenant) might be injured by allegedly defective premises
and claim damages against the landlord in tort

Sublease Assignment

CL-Formalistic Approach CL- Formalistic Approach (most common)

- If the lessee transfers anything less than his - An assignment arises when the lessee
entire interest, a sublease results transfers his entire interest under the lease
- The lessee retains a reversion - He transfers the right to possession for the
duration of the term
Intent-Less Common Approach Intent-Less Common Approach

In a sublease, original tenant is on the hook In an assignment, even tho no privity of K, there’s a
privity of estate so new tenant is on the hook

-Bc the tenant has right to possession for -When a tenant assigns all of her tenancy, LL is in
“remainder” of actual lease (“reversion”), there is no privity of estate with person tenant assigned her
privity of estate between the landlord and the tenancy to bc the tenant has no property rights left
sublessee Formalist v Intent Theory
● So if the sublessee doesn’t pay rent, landlord I hereby assign to X the duration of my 2-yr term of
can’t sue her, but rather the tenant years

● Look at the functional effect of the agreement; does the original tenant have an opportunity to take back
possession at any time?
○ If yes, it’s a sublease
Privity of Estate
● Whether oral or in writing, the lease between the landlord and the original tenant amounts to a
conveyance of a right of possession from landlord to tenant and that conveyance creates between the
landlord and the tenant “privity of estate

Quiet Enjoyment and Constructive Eviction

Village Commons, LLC v Marion County Prosecutor’s Office (2008) → Under lease provisions, Landlord was
required to maintain all equipment used in common with other tenants and to maintain the premises in good
condition. In the event of a breach by Landlord, the lease provided that MCPO could sue for injunctive relief or to
recover damages for any loss but it shall not be entitled to terminate the lease. Series of water damage,
never fixed bc too expensive.

Bouchouar 21
Holding → It was the Landlord’s own act or omission that resulted in extinguishing MCPO’s future rent payment
obligations
Rule → a tenant will be relieved of any obligation to pay further rent if the landlord deprives the tenant of
possession and beneficial use and enjoyment of any part of the demised premises by actual eviction. After
termination, the lease and all liability under it for future rent are extinguished

Actual Eviction Constructive Eviction

-when tenant is deprived of some part of the If:

premises a. The condition of the leased premises amounts
to a breach of the covenant of quiet
Conventional Rule enjoyment and
- where a landlord commits an actual eviction, even b. If the breach is so substantial as to justify the
though from part of the premises only, the tenant is tenant absenting the premises and
relieved of all liability for rent notwithstanding c. If the tenant thereafter leaves within a
continued occupation of the balance reasonable time,
● Rst rejects this ^ and provides that the tenant Then it was as though the tenant has been evicted
may receive an abatement in the rent but may
not withhold all rent -if there is some breach by landlord where only part
of premises is made uninhabitable, most jurisdictions
do not relieve tenant of obligation to pay rent

Covenant of Quiet Enjoyment

● In every lease there is an implied covenant that the tenant shall have the right of possession, occupancy
and beneficial use of every portion of the leased premises

The Implied Warranty of Habitability

● Alternative remedy available to tenant when there has been a breach of the implied warranty of
habitability, is to withhold the payment of future rent
To determine breach of implied warranty of habitability:
● Courts first look to any relevant local or municipal housing code
○ A substantial violation of an applicable housing code shall constitute a prima facie evidence that
there has been a breach of the warranty of habitability
● Courts should inquire whether the claimed defect has an impact on the safety or health of the tenant
So the test is:
1. Whether claimed defect has impact on safety or health of tenant
2. And tenant must show she notified the landlord of the defect and allowed a
reasonable time for correction
a. Tenant must show:
1. The landlord had notice of the previously unknown defect and failed, within a
reasonable time to repair it and
2. The defect, affecting habitability existed during the time for which rent was
withheld
Hilder v St. Peter (1984) → π orally agreed to pay ∆ Stuart $140 a month and a damage deposit of $50. Her landlord
was basically Mrs. Belgrave
Doctrine of Caveat Lessee → tenant took possession of the demised premises irrespective of their state of
disrepair--middle ages when farmers could fix shit

Bouchouar 22
Holding → in the rental of any residential dwelling unit an implied warranty exists in the lease, whether oral or
written, that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are
safe, clean and fit for human habitation
● Implied in tenancies for a specific period or at will
● The doctrine of constructive eviction, where the tenant must abandon in order to escape liability for
rent, is no longer viable
The Law of Nuisance
● Property + tort
● Law of nuisance rests on: sic utere tuo ut alienum non laedas
○ Every person should so use his property as not to injure that of another

Elements
1. Substantial AND
a. Intentional and
unreasonable OR
b. The unintentional result of
neg’l, reckless or
abnormally dangerous
activity

Unintentional Intentional
-A person is subject to -A person is subject to liability for an intentional invasion when his conduct
liability for an unintentional is unreasonable under the circumstances of the particular case
invasion when his conduct is -Intentional when the person whose conduct is in question:
neg’l, reckless or - Acts for the purpose of causing it
ultrahazardous - Knows that it is resulting from his conduct or
- Knows that it is substantially certain to result from his conduct

Morgan v High Penn Oil Co. (1953) → gas refinery

Holding → The evidence is ample to establish the existence of an actionable private
nuisance because the ∆ intentionally and unreasonably caused noxious gases and odors
to escape onto π’s land, and impaired in a substantial manner their use and enjoyment
of their land
~General rule is that fear alone is not adequate even if property value decreases (halfway house)~

Jost/ Threshold Test Rst.(minority)

- Whether the gravity of the harm exceeds the utility of the conduct
If the ∆’s action Gravity of harm
causes a 1. Extent of harm
substantial injury 2. The character of the harm
to π’s use and 3. The social value of the use of enjoyment invaded
enjoyment of land, 4. The suitability of the use invaded to the locality and
the economic or 5. The burden on the person harmed of avoiding the harm
social utility of ∆’s Utility of Conduct
actions are 1. Social value of the primary purpose of the conduct

Bouchouar 23
 irrelevant 2. The suitability of the conduct to the character of the locality
3. The impracticality of preventing or avoiding the invasion
Options:
1. If a ∆ is causing serious harm and can afford to pay π’s
without going out of business, action = nuisance
2. Second version focuses on degree of harm to π

4 Remedy Options
Abate activity through Don’t abate activity and Let activity continue, no Abate activity and make
injunction court measured damages damages π indemnify according to
are imposed court ascertained
damages
- Morgan - Boomer - Spur
- Estancias

Property rule/ Liability rule/ Property rule/ Liability rule/

entitlement in π entitlement in π entitlement in ∆ entitlement in ∆

Estancias Dallas Corp v Schultz (1973 TX) → loud ass ac unit

Rule/Holding → Balance of Equities: an injunction will be issued if injury to ∆ and public is slight compared to
injury to π. Relying on Storey v Central Hide
● In this case, there is no evidence that there is a shortage of apartments to live in the City of Houston and
that the public would suffer by having no place to live

Doctrine of Comparative Hardship or Equitable Hardship

● Balancing the equities

○ Courts will consider the injury which may result to the ∆ and the public
by granting injunction as well as the injury to be sustained by the
complainant if writ be denied
● Great emphasis on public interest
● Has an apparent efficiency objective to avoid the greater harm or social cost
● Perhaps this is used to avoid extortion probs as well

Balancing the Equities → overturned ~applied threshold~ test here

Boomer v Atlantic Cement Co (1970 NY) → dudes land affected by cement company
Whether the court should resolve litigation between the parties now before it as equitably as seems possible
or whether, seeking promotion of the general public welfare, it should channel private litigation into broad
public objectives
2 Alternatives
1. Grant the injunction but postpone its effect to a specified future date to give
opportunity for technical advances to permit ∆ to eliminate the nuisance
a. Not a good idea bc it’s unlikely there actually will be any advancements in technology
2. Grant the injunction conditioned on the payment of permanent damages to π’s which would compensate
them for the total economic loss to their property present and future caused by ∆’s operations
a. Reasonable to think that the risk of being required to pay permanent damages to injured
property owners by cement plant owners would itself be a reasonable effective spur to research
for improved techniques to minimize nuisance
Bouchouar 24
Holding → permanent damages, rather than an injunction, are appropriate when the damages
resulting from a nuisance are significantly less than the economic benefit derived from the
party causing the harm
→ here, the court applied the Jost test -- it states that the cement making damaged π’s property but notes
that the damage is small in comparison to the value of ∆’s operation

Spur Industries, Inc. v Del E. Webb Development Co. (1972 AZ) → cow shit case. This case is different than
Boomer bc here, we’re concerned with a public nuisance
Where the lawful operation of a business (cattle feedlot) becomes a nuisance by reason of nearby residential
area, may the business be enjoined in an action brought by the developer of the residential area? (YES)
● Having brought people to the nuisance to the foreseeable detriment of Spur, Webb must indemnify
Spur for a reasonable amount of the cost of moving or shutting down
Doctrine of Coming to Nuisance
● Courts have held that the residential landowner may not have relief if he knowingly came into a
neighborhood reserved for industrial or agricultural endeavors and has been damaged
● Prevailing view is that moving into the vicinity of a nuisance does not completely bar a suit for damages
or injunctive relief, but it is a relevant factor

Public Nuisance Private Nuisance

-A public nuisance is one affecting the rights enjoyed -A private nuisance is one affecting a single
by citizens as a part of the public individual or a definite small number of persons in
-May only be brought by someone showing a special the enjoyment of private rights now common to the
injury public
● To constitute a public nuisance, the nuisance -may be brought by person with property interest in
must affect a considerable number of people land affected only
or an entire community or neighborhood
○ U need a special injury in order to
come forward with case
Rst → an unreasonable interference with a right -protects rights in the use and enjoyment of land
common to the general public
-protects public rights

Any public nuisance can be a private nuisance but

not the other way around

Factors for unreasonableness:

● Whether the conduct in question significantly
interferes with public health, safety, peace,
comfort or convenience
● Most courts hold that unsightliness alone does not constitute a nuisance unless spite is the motive

Nuisance Law and Environmental Controls

● So many reasons why the law of nuisance should be limited in environmental control
● Some solutions could be class actions, special environmental courts, etc
● Alternative to judicial resolution is legislative and administrative intervention
○ Taken form of regulation
■ Backed by criminal and civil sanctions
○ Incentive systems

Bouchouar 25
 ■ Advocates of this decentralized system argue that sources with low control costs will
control to greater degrees than sources facing higher costs with the result that the total
outlay for a given level of quality will be minimized
■ Also encourages more technological innovation

Private Land Use Controls: The Law of Servitudes

So servitudes are cool bc instead of waiting for a nuisance suit, y’all can come to an agreement through an
easement or a covenant
● An easement is different than a license bc easements are non revocable whereas licenses are generally
revocable at any time (there are exceptions)
2 types of Servitude
1. Easement
2. Covenants
Easements

- An easement is a grant of an interest in land that entitles a person to use land possessed by another

Easement appurtenant is a right in land Easement In Gross is a right in an individual. So

benefited by easement if an easement does not benefit its owner in the use
Runs with land and enjoyment of his land but merely gives him the
Created through a grant right to use the servient land, the easement is in
gross.

So Aaron (owner of parcel A) can enter Bonnie’s land (parcel B)

Parcel A = dominant tenement Parcel B = servient tenement
Benefits Burdened

Creation of Easements?
1. Express Grant
a. ~Traditional way~
b. Need comply with Statute of Frauds
c. Should be recorded
2. Non Express Grants
a. Easements by Estoppel
b. Easements by Prescription
c. Easement by Implication from existing use when land is divided

Implied Easements
1. Easement by Necessity
(1) One original Owner
(2) Strict necessity at time of severance (intent of OG parties)
i. Level of necessity depends on whether it was a grant/ reservation
- Unlike easement by prior existing use, an easement by necessity endures only so long as it is
necessary
2. Easement by Prior Existing Use
a. One original owner
b. Apparent continuous and permanent prior existing use
c. Necessity at time of severance (level of proof at time of severance) (2 approaches)
i. Reasonable necessity or
ii. Reasonable necessity if granted but strict necessity if reserved

Bouchouar 26
 Easement by prior existing use is indefinite regardless of necessity so long as that was the intent of the
parties -- so it’ll exist even when necessity ends, unlike easement by necessity

Classifying Servitudes
● 5 types of servitude
1. For A to have an easement:
a. A is given the right to enter upon B’s land
2. For A’s interest to be a profit:
a. A is given the right to enter upon B’s land and remove something attached to the land
3. A is given the right to enforce a restriction on the use of B’s land
a. A’s interest may be treated as:
i. negative easement (rare)
ii. a real covenant or
iii. equitable servitude depending on several factors including the remedy that A
seeks in the even the restriction is breached
4. A is given the right to require B to perform some act on B’s land
a. A’s interest may be treated as a real covenant or an equitable servitude depending on
remedy sought
5. A is given the right to require B to pay money for the upkeep of specified facilities
a. A’s interest may be treated as a real covenant or an equitable servitude depending on
remedy sought

Creation of Non-Express Easements...

Easement by Prescription Easement by Estoppel
-similar to adverse possession Always derives from a license
● Open Elements:
● Continuous ● License- Owner grants a license to use roadway
● Peaceable ● Reliance- Licensee has made improvements
● Adverse based on the license
-Concerns the use, not the possession of land ● Knowledge of reliance- Owner has knowledge
-Rests on the idea that rights can be acquired simply by of improvements
the passage of time ~not recognized in all jurisdictions~
-Lost grant theory
A license may become irrevocable in certain situations...
● Vast majority of jurisdictions reject this theory
- Holbrook v Taylor (KT) → (cable wire) right to use
● Claimant must show:
roadway had been established by estoppel
1. That the use was not permissive and
2. The owner acquiesced (did not object) Rst (3rd) → a servitude may be created by estoppel.
● Majority presumption is that an unexplained,
Scope and terms of easement by estoppel
open, or notorious use of land, continued for the
- The expectations that create the servitude will also
prescriptive period, is non-permissive (ie adverse
define its scope and terms. The relevant
Exclusivity
expectations are those that reasonable pple in the
-The use need not be exclusive in the sense that it
position of the landowner and the person who
must be used by one person only but rather the
relied on the grant of permission or representation
right must not depend upon a similar right in
would have had under the circumstances
others
How long does a license made irrevocable by estoppel
Public Prescriptive easements
last?
Can be obtained by long continuous use by the
- Under Rst (1st) as long as necessary to prevent
public under a claim of right
unjust enrichment by the licensor
- Under Rst (3rd), abandons the position in favour
U can prevent an easement by prescription from rising,

Bouchouar 27
 build a fence or some shit of the view that the irrevocable license is treated
the same as any other easement

● McCoy v Hoffman
○ ...once licensee has made substantial expenditures on the faith of the license, it becomes
irrevocable and continues for so long a time as the nature of the license calls for
● Akers v Moore
○ Under the following conditions, a license becomes irrevocable and continues for so long a time
as its nature calls for:
■ With the knowledge of the licensor, one has in the exercise of the privilege spent money
in improving the way or for other purposes connected with its use on the faith and
strength of the license
● Shepard v Purvine (OR 1952) → two people in this litigation were friends and it would have been
embarrassing for a friend to ask for a license (u trust ur friends, right?). An oral license promptly acted upon
in the manner π’s acted is just as valid, binding and irrevocable as a deeded right of way.

Easement by Prior Existing Use

Van Sandt v Royster (KS 1938) → shit pipes made that connect 3 houses
Rule→ An easement created by implication arises as an inference of the intentions of the parties to a conveyance of
land
○ It doesn’t matter that he wasn’t put on notice bc an implied easement does not arise from a
document but is a right conferred by a court

Quasi Easement
● When one utilizes part of his land for the benefit of another part
● Easement based on parties intent not public policy
● Quasi Dominant Tenement → the part of the land which is benefited
● Quasi Servient Tenement → the part which is utilized for the benefit of the other part burdened

Rst Factors that Determine Implication of an Easement

a. Whether the claimant is the conveyor or the conveyee
b. The terms of the conveyance
c. The consideration given for it
d. Whether the claim is made against a simultaneous conveyee
e. The extent of necessity of the easement or the profit to the claimant
f. Whether reciprocal benefits result to the conveyor and conveyee
g. The manner in which the land was used prior to its conveyance
h. The extent to which the manner of prior use was or might have been known to the parties

Bouchouar 28
 Easement by Necessity
Grant v Reserved?
If an owner severs a property into two or more parcels, constructs a road that runs through both pieces of
land, sells both pieces of land without expressly referencing the road as an easement then….

Several jurisdictions, including NY & TX follow this old rule that distinguishes between an easement
implied in favour of the grantor (implied reservation) and one implied in favour of a grantee(implied
grant)
Reserved Easement if the owner keeps the parcel Granted Easement if the owner keeps the lot that
that uses the road on the OTHER lot the road goes through
Implied Reservations are in favour of the grantor Implied Grants are in favour of the grantee and only
and requires strict necessity requires reasonable necessity

If you’re reserving something to yourself, u gotta show strict necessity

Rst 3rd → rejects the distinction and states that only reasonable necessity is required for an implied servitude
regardless of whether the servitude is implied in favour of the grantor or the grantee

Othen v Rosier (TX- 1950) → Othen brought suit to enforce a roadway easement on Rosier’s land. So to have
implied easement, the burden of proof is on the person who wants easement to run and they must show that at the
time of severance, Othen couldn’t prove it wasn’t more than a mere convenience
● So here, for Othen’s claim to an implied reservation of an easement in a roadway means that when Hill,
the original owner, sold the land to the Rosiers, it was then necessary (not merely convenient) for him
to travel over it from the land now owned by Othen in order to get to and from the Belt Line road.
For an easement to be created by implied reservation
must show:
1. One OG owner: There was a unity of ownership of the
alleged dominant and servient estates
2. That the roadway is a necessity, not a mere convenience
and
3. That the necessity existed at the time of severance of the 2
estates

Termination of Easements
● Easement owner may agree to release the easement
● Expirations
● “Defeasible easements” expire automatically upon occurrence of some event
● Easements by necessity end when the necessity that gave rise to it ends
● Easement ends by merger if the easement owner later becomes the owner of the servient estate
● Easement may end through estoppel if the servient owner reasonably relies upon a statement or
representation by the easement owner
● May terminate by condemnation if the gov’t exercises its eminent domain power to take title to a fee
interest in the servient estate for a purpose that is inconsistent with continued existence of the
easement

Bouchouar 29
 ● May terminate by abandonment

Negative Easements
● Negative easement is the right of the dominant owner to stop the servient owner from doing something
on the servient land
● American courts have held that negative easements cannot be acquired by prescription
○ Prescription does not apply until the rights of the servient owner are interfered with and a cause
of action against the dominant owner arises

CL Types of Negative Additions in Modern law? Rst 3rd

Easements

Right to stop ur neighbor from: Peterson v Friedman Treats negative Easements as

1. Blocking ur window ● In england the right to an restrictive covenants
2. Interfering with air flowing unspoiled view cannot exist
to your land in a defined as an easement but here
channel the court enforced an
3. Removing the support of express easement of
your building unobstructed view of the
4. Interfering with the flow of San Fran Bay
water in an artificial Solar Panel Obstructions
stream
Conservation Negative
Easements
● Preserve scenic and
historic areas and open
space
● Owner of land can give a
public body or private
charitable org this
easement, which would
prevent the servient owner
from building on the land
except as specified on the
grant
● Perpetual in duration
● Transferable
● Can be in gross

Negative Easements → forbid one landowner from doing something on his land that might harm a neighbor

Bouchouar 30
C. Covenants Running With the Land
Traditional Approach
Covenants Enforceable at Law: Real Covenants
Covenants

- A covenant is a property interest created by promises made by one land owner to another
- A covenant is a promise respecting the use of land an easement is a grant of an interest in land
- The most important issue is whether they will run to assignees. Privity of estate is required for the
covenant to run

Covenants enforceable at law : Real Covenants Covenants enforceable at equity → Equitable

Servitudes
A Real Covenant is a K right respecting land use
that is enforceable against the promisor landowner -Unlike Real Covenants, Equitable servitudes can be
but against the successors in title as well. implied by a scheme
This is important bc bargains are less likely to be
struck if only the OG promisor is bound and only -the promisor can enforce the promise through
the OG promisee will benefit. injunctions

Elements for Enforceability Requirements for Implied Equitable

1. The agreement must be in writing Servitude (majority view)
2. The parties must intend to bind future 1. Statute of Frauds replaced by:
successors a. Common owner
3. The promise “touched and concerned” the b. Common scheme and
land c. Intent to apply to lot
4. There was privity of estate between the 2. Intent
covenanting parties 3. Notice
4. Touches and concerns
Burden = a restriction
Benefit= not living next to (for ex.) a factory
-a real covenant is a K right respecting land use that Notice
is enforceable against the promisor landowner, but 1. Constructive
against the successors in title as well a. Public records
2. Inquiry
-if the promise is broken, the promisee receives a. Something u see puts u on notice
damages from the promisor

● Promisee wants assurances that he and his

successors in interest will be protected
against the OG promisor and his successors
in interest and what is needed is something
more than a K
● Test for running of the burden is
traditionally more burdensome than the test
for running of the benefit
○ Running meaning runs from OG
owner to new owner

~Damages~ ~Injunction~

Real Covenants→ Traditional Approach

Horizontal Privity (OG) Vertical Privity (derivative)

Bouchouar 31
 - OG in the sense that the owner originally - Meaning privity of estate between one of the
owned both plots of land and severed it in covenanting parties and a successor in
sale interest
- Meaning privity of estate between the OG - Must show its the same kind of estate
covenanting parties - Traditional doctrine requires vertical privity
- Traditional rules are that horizontal privity of for both the burden and the benefit of a real
estate is required for the burden of a covenant covenant to run
to run at law but that horizontal privity is not
required for the benefit to run
Burden Benefit

Burden to run Benefit to run -enforceable only -any privity of estate

against someone who
required Not required has succeeded to the More relaxed standard
same estate as that of
the OG promisor -the promise is
How can you create horizontal privity?
The covenant is enforceable by a person
- Strawman
enforceable only against who succeeds to the OG
someone who has promisee’s estate or to a
ANALYSIS:
succeeded to the same lesser interest carved
Are we trying to run the benefit or the burden
estate as that of the OG out of that estate
of the promise?
promisor
Does the burden run?
-does not run to an
If yes, then ask is there horizontal privity
adverse possessor bc an
grantor/ grantee between the covenanting
adverse possessor does
parties
not succeed to the OG’s
estate but takes a new
If the OG benefited party seeks to enforce the other
title by operation of
party’s covenant against someone who bought the
other party’s land, the OG party only need to prove
that the burden of the covenant runs with the land -can be a 20 yr lease

If a successor to the OG benefited party seeks to

enforce a covenant against a party who originally
made the covenant, the successor doesn’t have to
prove that the burden of the covenant runs with the
burdened land bc the original party is bound by his
K -- she only has to prove that the benefit runs with
the original party’s benefited land so that she has
the right to enforce the covenant as the current
owner of that land

If a successor to the original benefited party seeks to

enforce the covenant against a successor to the OG
burdened party, the successor to the OG benefited
party must prove that the benefit runs with the
benefited land and that the burden runs with the
burdened land

Covenants Enforceable in Equity: Equitable Servitudes → can be enforced through injunction

● Traditional requirements:
1. Statute of Fraud replaced by:
a. Common owner
b. Common scheme and

Bouchouar 32
 c. Intent to apply to lot
2. Intent
3. “Touch and concern”
4. Notice
● horizontal/ vertical privity is not required (so adverse possession can qualify)
○ All subsequent owners and possessors are bound by the servitude, just as they are bound by an
easement
● Notice of the covenant is required for the burden of an equitable servitude to run with the land, but is
not required for the running of the benefit
● Remedy = injunction

Tulk v Moxhay (England 1848) → Leicester Square

Whether a party shall be permitted to use the land in a manner inconsistent with the K entered into by his
vendor and with notice of which he purchased/ whether a covenant restricting use of a piece of land may be
enforced against a subsequent purchaser of the land (yes)
Reasoning → a party purchasing real property may not receive rights to the property greater than those
owned by his seller. It would be inequitable to permit Elms to sell property that he knew to be burdened to
another party and receive compensation for the land as though it were free and clear for this would render the
intent of the OG covenant meaningless.

Implied equitable servitudes

● Must start with a common owner and common scheme

● So if the owner of two or more lots sells one with restrictions of benefit to the land retained, the
servitude becomes mutual and during the period of restraint, the owner of the lot or lots retained can
do nothing forbidden to the owner of the lot sold
● It is an easement passing its benefits and carrying its obligations to all purchasers of land subject to
its affirmative or negative mandates
● Created when a landowner sells a part of her property and restricts the buyer’s use of
that specific part
● Same restriction is placed on the part of the land kept by the landowner also
● Never retroactive

Sanborn v McLean (majority) (MI- 1925) → gas station case

Holding → Doesn’t matter that it’s not in the deed, ur subject to the implied equitable servitude
(minority of courts) → in CA an equitable servitude must be created by a written instrument identifying the
burdened lot; it will not be implied from the existence of restrictions on other lots in a subdivision

Constructive Notice Inquiry Notice

Public Records The strictly uniform residence character given the lots

Discriminatory Covenants (Equitable Servitude)

● Can’t sell to “ ” = restriction on alienation, so it’ll be struck down
● Restricted to use of “ “ = does not violate alienation
● Courts can’t enforce restrictive covenants

Bouchouar 33
Shelley v Kraemer (SCOTUS- 1948) → 1911 → 30/39 owners signed agreement with restrictive covenant banning
blacks from living in area. In 1945 → respondents (dickheads) brough suit wanting Shelley to be restrained from
taking possession of property and revest title to immediate grantor
● Shelley argues that restrictive covenant violates their 14th A right under Equal Protection Clause
Holding → In granting judicial enforcement of the restrictive agreements in these cases, the States have denied
petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand.

Termination of Covenants
● Merger on the basis of unity of ownership of the benefit and burden by the same person
● A formal release which is normally written and recorded
● Acquiescence which arises when the π has failed to enforce the servitude against other breaches and then
seeks to enforce the servitude against the ∆
● Abandonment which resembles acquiescence except that it makes the servitude unenforceable as to
the entire parcel rather than only as to the π immediately involved
● The equitable doctrine of unclean hands according to which the court will refuse to enjoin a violation
of a servitude that the π previously violated
● The equitable doctrine of laches which involves an unreasonable delay by the π to enforce a servitude
against the ∆ causing prejudice to the ∆
● Estoppel if the ∆ has relied upon π’s conduct making it inequitable to allow the π
to enforce the servitude

Zoning

● Zoning is an exercise of police power to regulate for public’s health, safety, morals or general welfare
● A zoning ordinance is legitimate if there is a substantial relation to the police power
● Zoning authority must be delegated to local gov’t by state enabling acts that usually require a
comprehensive plan
Bouchouar 34
 ● Zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals or general welfare. (ends/means weighing)
○ Rational Basis Applied
○ Euclid

Historical Background
● The rise of industrialization led to issues that couldn’t be solved by nuisance law nor by restrictive
covenants
○ The issue with real covenants is that they were only a solution in situations in new subdivisions
and other developments of large acreage occurring under a single owner who imposed the
covenants
● So people turned to zoning which was in theory designed to prevent harmful neighborhood effects
Howard Burnham Le Corbusier
- Garden City - City Beautiful - Radiant City
- Rejected urbanity - Accepted urbanity - mixed
Howard’s ideological principles of zoning:
1. Separation of uses
2. Protection of the world’s
columbian exposition, chicago,
1893 single family home
3. Low rise development
4. Medium density population

The Structure of Authority Underlying Zoning

● Standard State Zoning Enabling Act
○ Regulations must be made in accordance with a comprehensive plan and designed to lessen
congestion in the streets, to secure safety from fire, panic and other dangers, to promote health
and the general welfare, to provide adequate light and air, to prevent the overcrowding of land,
to avoid undue concentration of population, etc.
○ To enact a zoning ordinance, a city must create a board where members are elected by the mayor
○ Expert planners, citizen commissioners and politicians involved in enacting a zoning ordinance
● Comprehensive Plan is a statement of the local gov’t’s objective and standards for development
The Nonconforming Use
● Right to maintain a nonconforming use runs with land hence it survives a change of ownership
● Destruction of a nonconforming use usually terminates it and so too for abandonment, which requires
intent to abandon the nonconforming use
○ Some jurisdictions and discontinued use
How to terminate non-conforming use?
1. Amortization
2. Destruction
3. Abandonment
PA Northwestern Distributors, Inc. v Zoning Hearing Board (PA- 1991) → adult book store
Whether a zoning ordinance that requires a lawfully preexisting nonconforming business to pay fines AND
get the fuck up outta there is a constitutional violation as a takings of property without just compensation
Holding → the amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory
and violative of the PA Constitution.
Rules → municipalities lack the power to compel a change in the nature of an existing lawful use of property.

Bouchouar 35
 → a lawful non conforming use establishes in the property owner a vested property right which
cannot be abrogated or destroyed unless:
a. it is a nuisance,
b. it is abandoned or
c. it is extinguished by eminent domain
→ if the gov’t desires to interfere with the owner’s use, where use is lawful and is not a nuisance nor is it
abandoned, it must compensate the owner for the resulting loss
Policy Considerations
● Future economic development could be compromised
● Any use could be amortized out of existence without just compensation

2 approaches toward Amortization

Per Se Takings Balancing
- Per se takings, if not a nuisance or abandoned Public gain v individual loss
An appropriate exercise of police power if reasonable
Factors:
- Length of amortization period in relation to
nature of non-conforming use
- Length of time in relation to investment
- Degree of offensiveness in relation to
character of neighborhood

Factors usually listed as relevant to an assessment of reasonableness of a particular

amortization period:
● The nature of the use in question
● The amount invested in it
● The number of improvements
● The public detriment caused by the use
● The character of the surrounding neighborhood
● The amount of time needed to “amortize” the investment

Aesthetic Zoning
Stoyanoff v Berkeley (MO-1970) → π’s sue saying ordinances for aesthetic objectives go beyond power.
May a city gov’t deny a building permit to a landowner on the basis that the proposed home does not
aesthetically conform to the other homes in the area? (yes)
Rule → as an exercise of their police powers, states may authorize local gov’t’s to make zoning regulations
regarding aesthetic matters for the general welfare of the community
Berman v Parker → public welfare includes values that are spiritual, physical, aesthetic and monetary. It is within
the power of the legislature to determine that the community should be beautiful, healthy, spacious, clean, well
balanced and carefully patrolled.

Exclusionary Zoning
● This is different than traditional zoning bc here, measures are being taken to purposely and effectively
close an entire community to an unwanted group (usually poor folks) who might put a heavy burden on
the public fisc yet at the same time contribute little to it resulting in increased property taxes and
reduced land values throughout the community

Bouchouar 36
Mount Laurel (NJ 1975) → zoning that made it hard for poor pple to live there
Rule → A town, through enactment of land use regulations, must provide the opportunity for
low and moderate families to live in the town and may not constructively prevent them from
doing so.
→ a zoning regulation, like any police power enactment, must promote public health, safety, morals or the
general welfare

State Police Power Scope of General Welfare

all police power enactments, no matter at what level welfare of the state’s citizens beyond the borders of
of gov’t, must conform to the basic state the municipality must be recognized. It can’t be
constitutional requirements of substantive due inconsistent with general welfare of state as a whole
process and equal protection of the laws and must be
consistent with the general welfare. Remember, here
the police power is a state power and actions local
gov’t’s take must be in pursuit of state because local
gov’t’s aren’t granted powers

Takings-Eminent Domain and the Problem of Implicit Takings

Eminent Domain
● Is the power to of gov’t to force transfers of property from owners to itself upon payment of fair
market value
● 5th A = limit

Bouchouar 37
 ○ For public use only
● Risk of not having eminent domain?
○ holdouts

Public Use Definition

Public Purpose/Broad view Public Use/ Narrow View
The term means advantage or benefit to the public It means actual use or right to use of the condemned
property by the public

Kelo v City of London (2005)→ even though sold to - Difficult to administer bc what proportion at
private party, for public use what price etc.
Berman v Parker → rational deference - Impractical bc of diverse and always evolving
Hawaii Housing → doesn’t matter that it’s needs of society
transferred to private individual, it is only the
takings purpose and not the mechanics
that matter in determining public use

-Promoting economic development is a traditional

function of gov’t
- obviously can’t take land for purpose of conferring
a private benefit on a particular private party

~Doctrine remains in shambles today~

Ask: do the ends justify the means?
● Ends → if the ends are sufficiently public in one sense or another the test is passed
● Means → whether the power of eminent domain is really necessary to accomplish whatever aim the gov’t has
in mind
2 tests
Categorical Rule/ Per se Balancing Test

Public need vs private loss

Posner functional justification for the taking power

● Implied reservation
● Remnant of feudal tenures
● Stresses efficiency
● Anti monopoly device whatever tf that means
Duty to compensate
● Economic rationale
● Fairness rationale

Dissent (O’Connor POV) Dissent (Thomas POV)

3 categories of takings that comply with public use - Allowing the gov’t to take property solely for
requirement public purposes is bad enough but extending
1. Transfers of private property to public the concept of public purpose to encompass
ownership any economically beneficial goal guarantees

Bouchouar 38
 2. Transfers to private parties who make that these losses will fall disproportionately
property available for public use on poor communities
a. Hospital, military base, etc. - Plain Language Approach the most
3. Transfers to private parties as part of a natural reading of the takings clause is that it
program to serve a public purpose allows the gov’t to take property only if the
a. Railroads, stadiums, etc gov’t owns or the public has a legal right to
use the property

Just Compensation
● Just compensation is market value
● SCOTUS rejects personal value
● Liability approach?
○ Under this approach, compensation at fair market value would be used in the case of takings for
classic public uses but as the uses in question move away from the classic model in the direction
of private to private transfers, compensation awards would increase as a function of increasing
judicial skepticism about the public benefits of the gov’t action in question

Implicit Takings (Regulatory Takings)/ Constructive Takings

Whether a taking has occurred in consequence of some gov’t activity other than explicit taking by
condemnation

2 Approaches

Bouchouar 39
 Per se/ Categorical Rules Ad Hoc/ Balancing Test- Penn Central Factors
-should be evaluated under a multifactor balancing
2 Categorical Rules (Pre-1992) test, Should balance public need versus private loss
A permanent physical Nuisance control
1. Economic Impact of the regulation (apply Murr
occupation authorized regulations are never
diminution test)
by the gov’t is a taking takings
a. Particularly the inference with distinct
period (don’t care about
investment backed expectations
whether the action Hadacheck → brickyard
b. Even if you bought it knowing there
achieves an important Here, held only was a new regulation, that won’t bar u
public benefit or only limitation is that cannot from suit
has a minimal impact on be arbitrary or c. “We’re gonna treat u as the person
the owner discriminatory. The who owned the land pre-regulation”
regulation here was in d. What would a reasonable investor
Loretto→ cable wire case good faith and for the
think she could do?
public health. 2. Character of the gov’t action- what’s their goal?
Limitations to Police Power? e. Benefit Conferring → to what degree is
- Arbitrary it producing a public benefit?
- discriminatory i. Penn --aesthetic benefit
f. Harm Preventing → what public harm is
3 Categorical Rules today
being prevented
1. Permanent physical occupation is taking
a. Loretto i. Weighs heavier in gov’t’s
2. Permanent deprivation of all economically or favour than benefit conferring
productive use of land is a taking UNLESS (3) ii. Think health, welfare, noxious
a. Apply diminution test use
b. Clearest version of going too far iii. Doesn’t matter if it’s not a
c. Does not apply to temp. Regulations nuisance
3. If limitation is consistent with background iv. Lucas -- harm of erosion
principles of states law of property and law of 3. Average reciprocity of advantage
such use would be prohibited by CL court, it is g. Is this property owner uniquely
not a taking limited in their use and they’re the
a. Absorbs Haddocheck rule only one bearing the burden?
b. Nuisance comes up h. If it’s benefit conferring, in order for it
to not be a taking, the person must
benefit from it as well
i. If you can’t show average reciprocity
2+3 come from Lucas of advantage, then it’s likely to be
(Lucas test only applies when the challenged considered a taking
j. If it’s harm preventing and I’m still the
regulation permanently enjoins all valuable use of
only one that’s burdened issa taking
the land) k. basically says that the aggregate
amount of benefit that comes from a
regulation is approximately equal to
the amount of burden the regulation
causes

Conceptual Severance- Murr v Wisconsin (SCOTUS- 2017)

If figuring out the extent of harm, where do we start in analyzing property?
In order to know whether it’s a taking, u gotta know the diminution in value.
To determine where to start in measuring the change in property value for a regulatory takings analysis….

1. How land is bounded under state law

2. The physical characteristics of the property
Bouchouar 40
 3. The impact of regulation on value, with a special attention to the effect of the burdened land on the
value of the other holdings
Use at beginning of taking analysis and then again with Penn balancing test analysis
- Endeavor should determine whether reasonable expectations about property ownership would lead
a landowner to anticipate that his holdings would be treated as one parcel or as separate tracts

Rules Based on Measuring and Balancing

PA Coal Co. v Mahon (SCOTUS 1922) → Protection of the public harm of mining. Here, if it’s TOO much of a
burden, issa taking
Holding → the act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal
under streets or cities in places where the right to mine such coal has been reserved
→ overregulation will be considered a taking
→ if it destroys a recognized estate in land, issa taking
Dissent (Brandeis)
● Right of an owner to use his land is not absolute
● Public nuisance prevention is not a taking
● The rights of an owner as against the public are not increased by dividing the interest of his property
into surface and subsoil

Bouchouar 41